Administrative Agency "Within the Judicial Realm" Not Subject to PRA, According to New Court Decision

In West v. Washington State Association of District and Municipal Court Judges, a state agency, 2015 WL 6680205 (Div. I, November 2, 2015), Division I held that the Washington State Association of District and Municipal Court Judges (the Association) is a judicial branch agency for purposes of the Public Records Act (PRA), chapter 42.56 RCW. Although the Association does not hear and decide cases, it conducts some of the traditional administrative business of the courts and by statute reports on the business of the courts to the legislature and to the Supreme Court. RCW 3.70.040. This function places the Association squarely “within the judicial realm,” and therefore outside the scope of the PRA, under the test developed in Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986).

In Nast, the Supreme Court held that the King County Department of Judicial Administration was not subject to the PRA because “its function as custodian for court case files places it within the judicial realm.” 107 Wn.2d at 305. Thus the court took a functional view to determine whether an agency, otherwise within the purview of the PRA, was within the judiciary and for that reason not subject to the requirements of the PRA.

Like the Department of Judicial Administration in Nast, the Association in West exists solely to perform statutory functions that are “all part and parcel of the type of administrative work that judges do and have always done.” Given that its functions are “judicial,” the Association is outside the realm of the PRA and its rules do not apply. Note that in Nast, the common law right of access to court case files controlled over the more general language of public disclosure laws applicable to state and local governments, and in subsequent cases, courts held that those disclosure laws do not to apply to the judicial branch at all. See City of Federal Way v. Koenig, 167 Wn.2d 341, 345-46, 217 P.3d 1172 (2009), citing Spokane & E. Lawyer v. Tompkins, 136 Wn. App. 616, 621–22, 150 P.3d 158 (upholding denial of public records request for correspondence from county judges to the bar association regarding local lawyers); Beuhler v. Small, 115 Wn. App. 914, 918, 64 P.3d 78 (2003) (upholding denial of public records request for a computer file containing a judge's notes on prior sentences he had imposed).

Updated Edition of the Washington Open Government Resource Manual

The Washington State Office of the Attorney General has issued a new addition of its Open Government Resource Manual. The 2015 manual provides information on the Open Public Meetings Act (OPMA), Chapter 42.30 RCW, and the Public Records Act (PRA), Chapter 42.56 RCW (through October 1, 2015).

Click here for a PDF version of the manual. Click here for an online version. 

This is an update of the Attorney General's 2007 Manual. 

Open Meetings Laws Not Applicable To Informal Discussion Groups

In Citizens Alliance for Property Rights Legal Fund v. San Juan County (October 1, 2015), the Washington Supreme Court held that informal discussion groups are not “governing bodies” or “committees thereof” subject to the state’s open meetings laws. Prior to San Juan County updating its critical areas ordinances (CAO), a group of county council members, staff, and consultants met approximately 26 times to discuss implementing the CAO updates. Every aspect of the CAO Team was informal: the County Council did not formally create it; members were not formally appointed; and the Team had no formal purpose, no designated responsibilities, and no official relationship to other county departments. Further, the County’s governing body, the County Council, held approximately 100 different meetings, workshops, hearings, or joint hearings regarding the CAO update, all of which were presumably open to the public.  

Nevertheless, Citizens Alliance sued to invalidate the ordinances, arguing the CAO Team improperly discussed the CAO update in meetings that did not comply with the Open Public Meetings Act (OPMA). The Court of Appeals ruled against Citizens. Citizens Alliance for Property Rights Legal Fund v. San Juan County, 181 Wn. App. 538 (2014). On further review, the Supreme Court also rejected Citizens’ arguments, emphasizing that the OPMA “does not extend to advisory committees and other entities that do nothing more than conduct internal discussions and provide advice or information to the governing body.” The Court then made a number of holdings clarifying the OPMA’s scope:

  • The Court firmly rejected the “negative quorum” doctrine. The OPMA’s requirements apply to a governing body’s meetings only when a majority of its members are present. Having enough members present to block legislation is insufficient on its own. Here, even though 3 of 6 Council members may have been present at some of the CAO Team meetings (and could therefore have defeated future legislation), the CAO Team never had a 4 member majority of the Council present.  
  • For serial telephone and email communications to trigger the OPMA’s requirements, a majority of the governing body must participate in the communications and collectively intend to transact business. Passive receipt of emails does not count. Relaying telephone conversations does not count if the members on the call do not intend for the conversation to be incorporated into a later meeting.  
  • A “committee” is subject to the OPMA only when the governing body acts to create the committee and only if that committee “acts on behalf of the governing body.” In other words, the OPMA applies only when a committee exercises decision-making authority on behalf of the governing body that authorized the committee or ratified its actions. Here, the CAO Team did not implicate either element. The County Council did not create the Team, and the Team did not exercise decision-making authority for the Council. Gathering information, conducting internal discussions, and providing information to a governing body does not arise to “acting on behalf of the governing body.”  

Managing the Risks of Open Municipal Data

American cities possess a treasure trove of information about their residents, employees, and infrastructure. As state and local governments come under increasing pressure to project greater transparency, cities are beginning to open the doors to their data like never before. Recently, a team of multidisciplinary researchers affiliated with the University of Washington conducted one of the first sustained assessments of an open municipal data system. The researchers worked closely with the City of Seattle to understand its current procedures and to generate recommendations intended to help the city manage the risk inherent in opening up its data.

A link to the article, entitled "Push, Pull, and Spill: A Transdisciplinary Case Study in Municipal Open Government" can be found here

Agency's Failure to Engage in "Any Serious Independent Analysis" of Validity of Exemption Status Supports a Finding of Bad Faith Under the PRA

In Adams v. Washington State Department of Corrections, Division II of the Court of Appeals held that for purposes of penalty calculation for agencies that do not comply with PRA requests under RCW 42.56.565(1), an agency will be punished for “bad faith” if it fails to engage “in any serious independent analysis of the exempt status of documents.” The Court of Appeals affirmed the findings of the trial court that found that the DOC’s justification for withholding a prisoner’s state and federal rap sheets was insufficient, and that the DOC engaged in “bad faith” under the PRA by failing to. 

In this case, Adams, a prisoner, submitted a public records request to the DOC for his inmate central file—a collection of documents that contained, among other items, an offender’s criminal history obtained from both state and federal authorities, otherwise known as “rap sheets.” The DOC refused to produce portions of the rap sheets requested, some of which were obtained from ACCESS, a federal database, arguing that the records were exempt from disclosure under RCW 4.56.070(1) and federal laws. The DOC also argued that non-conviction criminal history information was for law enforcement use only, and therefore exempted from disclosure.

Only a few days before Adams filed his complaint alleging PRA violations, the Spokane County Superior Court held in Chester v. Department of Corrections that similar information, such as Washington State and FBI criminal rap sheets, were not exempt from disclosure under the PRA. Ten months later, the DOC filed a motion for show cause hearing against Adams, noting that it still intended to withhold 21 pages of Adams’s Washington and FBI rap sheets. The DOC claimed that disclosure would violate ACCESS use agreements. At the time, the DOC’s only support for this argument was the stated position of the Washington State Patrol and the FBI.

The trial court found the DOC’s justification insufficient to withhold disclosure. Upon questioning, the DOC could not point to any evidence that the ACCESS use agreement prohibited disclosure of the rap sheet information. The trial court also noted that the DOC had engaged in only a cursory investigation of the merits of its exemption justification, limiting its investigation to only a few short e-mail exchanges with state patrol and the FBI. The trial court ordered the disclosure of the rap sheet information and assessed penalties on the DOC for withholding the records in bad faith.

The DOC appealed, arguing that, standing alone, reliance on an invalid basis for nondisclosure was not sufficient for finding bad faith, as long as the basis was not “farfetched.” In support of this contention, the DOC argued that federal law prohibited them from disclosing certain information obtained from a federal criminal database (III System Information) to the individual who is the subject of that information. The court disagreed, noting a long line of cases that held that an individual is entitled to such information under the relevant federal authorities. The court also observed that the DOC both cited the wrong federal statues and misread the correct ones in a manner that was “inconsistent with longstanding federal law authorizing inmate access” to the inmate’s FBI criminal history information. The court found that the DOC justification or withholding the state criminal history information, WAC 446-20-090, was similarly indefensible, as this regulation concerned a right that was only supplementary to those contained in the PRA.

Although the court held that the burden was still on Adams to prove bad faith under RCW 42.56.565(1), the court affirmed the trial court’s finding that the DOC improperly withheld Adams’s criminal history information in bad faith by continuing to withhold Adams's records for more than 10 months after the analogous Chester decision was entered, and for failing to conduct its own independent verification of the validity of its exemption claims. The court awarded Adams his costs on appeal.

Text Messages on Private Devices Subject to Washington Public Records Act

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

The Court provided public officials a method to submit an affidavit to separate personal from public messages:

“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.

Washington Court Holds Ballots Secret and Not Subject to Public Disclosure

The Washington Constitution, Article VI, Section 6 states: “The Legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.” This provision was central to a Washington Court of Appeals decision on July 13, 2015, rejecting a public records act request for “copies of electronic or digital image files” of ballots. White v. Skagit County and Island County, ___ Wn. App. ___, No. 72028-7 (Jul. 13, 2015).

Following the 2013 Washington general election, Timothy White sent public records requests for all ballots to all counties in the state. The counties denied the requests and White sued. The Washington Public Records Act does not expressly exempt ballots from disclosure. It does, however, include an “other statute” provision that incorporates exemptions to disclosure that are based on laws outside of the Act. The court applied the “other statute” exemption in light of the comprehensive statutory scheme restricting access to ballots. The court concluded that the exemption “is necessary to protect the ‘vital government function’ of secret ballot elections.” Two weeks earlier, a different division of the Court of Appeals reached the same conclusion in White v. Clark County, ___ Wn. App. ___, No. 46081-5-2 (June 30, 2015).

Of further note, the court rejected White’s claim that Skagit County should be penalized for failing to respond to his request for “the original metadata and Properties of the electronic or digital files requested.” The court concluded that it was not unreasonable for the county to ask for an explanation of the electronic files requested. The Court of Appeals agreed with the trial court that “White’s failure to respond to the request for clarification excused the County from trying to explain more specifically why the ‘metadata and Properties’ were exempt.”

No Privacy Interest In Employee's Identity Connected To Existence Of Investigation When Allegations Are Not Described

In Predisik v. Spokane School District No. 81, the Washington Supreme Court holds by a 5 justice majority that disclosure of employer investigation records that reveal an employee’s identity do not implicate employee privacy rights under the Public Records Act (PRA) when the records do not describe the allegations being investigated.  The court therefore reversed the Court of Appeals below, ordered disclosure of the records without redaction, and denied the employees’ requests for injunctive relief under the PRA. 

Two media outlets submitted public records requests to Spokane Public Schools for documents concerning employees on administrative leave.  In response, the District produced three records: an “administrative leave letter” placing an employee on leave and banning the employee from district property and from talking with students about the matter; and two spreadsheets that documented the amount of leave pay accumulated by the employee named in the leave letter and a second employee also on leave.  None of the documents detailed the allegations’ contents. 

Under the employee personal information exemption, only an employee’s personal information that implicates privacy interests (i.e., matters concerning the private life) may be withheld under the PRA, and only when the information’s release would violate the employee’s right to privacy.  Here, the Court held that the existence of a public employer’s investigation is not a “private” matter, but merely an administrative process arising from the employee’s public employment.  The existence of the investigation “is not akin to a family quarrel or a humiliating illness, nor does it touch on the employee’s life at home.”  The investigation itself is therefore not a “closely held private matter that gives rise to a privacy right under the PRA.”  Whether the allegations are later substantiated, or not, “makes no difference … because the records do not describe them.” 

The 4 dissenting justices would have held that employees have a privacy interest in their identities when connected to the existence of an employer investigation into not yet substantiated allegations of misconduct, and that disclosure would violate their rights to privacy.  The employees’ identities remained a private matter because unsubstantiated allegations do not bear on employee performance.  The employees’ identities should have therefore been redacted from the records prior to disclosure. 

Washington Supreme Court Grants Petitions to Review Nissen v. Pierce County

On March 3, 2015, the Washington Supreme Court granted two petitions to review Nissen v. Pierce County, 183 Wn. App. 581, 333 P.3d 577 (2014).  In Nissen, the Washington Court of Appeals applied the Washington Public Records Act and held that text messages sent and received from a government employee’s (the elected prosecuting attorney’s) private cell phone are public records if they relate to government business, as are portions of call logs that track a government employee’s private, non-agency cell phone.  Read more about the decision here.  Pierce County and the Pierce County Prosecutor separately sought review of the appellate court ruling.  The Supreme Court granted both petitions for review.

Hillary Clinton Defends Use of Personal E-mail

On March 2, 2015, The New York Times reported that Hilary Clinton, during her tenure as Secretary of State, may have violated federal regulations by using her personal e-mail to conduct government business. The report says that Clinton aides took no measures to preserve the personal emails on the department servers, which is required by the Federal Records Act.

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